Greg Day, Associate Professor of Legal Studies at the Terry College of Business and professor (by courtesy) at the University of Georgia School of Law, published “Antitrust for Immigrants” in the Cornell Law Review.

Below is an abstract from the draft paper:

Immigrants and undocumented people have often encountered discrimination because they compete against “native” businesses and workers, resulting in protests, boycotts, and even violence intended to exclude immigrants from markets. Key to this story is government’s ability to discriminate as well: it is indeed common for state and federal actors to enact protectionist laws and regulations meant to prevent immigrants from braiding hair, manicuring nails, operating food trucks, or otherwise competing. But antitrust courts have seldom mentioned a person’s immigration status, much less offered a remedy.

This Article shows that antitrust’s “consumer welfare” standard has curiously ignored the plight of immigrants. Part of the reason is that antitrust law is characterized as a “colorblind” regime benefitting consumers collectively, meaning that it isn’t supposed to prioritize insular groups such as immigrants. Courts and scholars have also described matters of inequality and discrimination as “social harms” existing beyond antitrust’s scope. In fact, antitrust lawsuits have successfully sought to drive immigrants out of markets, alleging that competitors gained an “unfair” advantage from employing undocumented workers. Under this view of antitrust law, the exclusion of immigrants is an appropriate way of promoting competition.

This Article argues that anti-immigrant discrimination creates the exact types of harms that antitrust was meant to remedy. Since excluding immigrants can misallocate resources on citizenship or racial lines as opposed to their most productive usages, certain acts of discrimination should entail “conduct without a legitimate business purpose,” even when based solely on racial animus. A hidden type of market power is revealed in that foreign-born people are less able to employ self-help remedies to correct market failures. In addition to analyzing antitrust’s purpose and economic foundation, this Article delves into antitrust’s history to show that an original function of competition law was to protect foreigners. By demonstrating how incumbents can inflict greater levels of harm on immigrants while wielding less market power, this Article reimagines the consumer welfare standard and its colorblind approach as well as reveals how marginalized communities defy antitrust’s assumptions of self-help remedies.

Greg Day is an Associate Professor of Legal Studies at the Terry College of Business and holds a courtesy appointment in the School of Law. He is also an Affiliated Fellow at Yale Law School’s Information Society Project as well as the University of North Carolina’s Center for Information, Technology, and Public Life. His research has primarily focused on the intersection of competition, technology, innovation, and privacy as well as the disparate impact of anticompetitive conduct.